December 21, 2011

 

Decision and Order

 

Appearances:               Karen Beth Gray, Esq.
                                        Counsel for Petitioner

 

Commissioners:  Charles B. Swartwood, III, David L. Veator, Patrick J. King, Paula Finley Mangum and Martin F. Murphy

 

Presiding Officer:  Chairman Charles B. Swartwood, III

 

DECISION AND ORDER ON MOTION FOR SUMMARY DECISION

 

On November 7, 2011, Petitioner filed a Motion for Summary Decision (Motion) pursuant to 930 CMR 1.01(6)(e)(2).[1]/  For the reasons stated below, we grant Petitioner’s Motion and Order Respondent, David Landy, to pay a civil penalty of $800.

 

I.  Factual Background

 

The Order to Show Cause (OTSC) alleges that Respondent was an employee of the Pension Reserve Investment Management Board and as such a state employee pursuant to G.L. c. 268A, § 1.  The Order to Show Cause also alleges that Respondent was required to file a Statement of Financial Interests (SFI) for calendar year 2010 by May 2, 2011, in accordance with G.L. c. 268B and 930 CMR 2.00.  The Respondent did not file by that date. 

The OTSC further alleges that on May 6, 2011, the Commission sent Respondent a Formal Notice of Lateness (Formal Notice) by first class and certified mail.  The Formal Notice advised Respondent that his SFI had not been filed and was, therefore, delinquent.  The Formal Notice further advised Respondent that his failure to file his 2010 SFI within 10 days would result in civil penalties.  Therefore, Respondent was required to file his SFI by May 19, 2011.[2]/

The Respondent subsequently filed his SFI on August 1, 2011, more than seventy-one (71) days after the expiration of the grace period following receipt of the Formal Notice. 

The OTSC alleges that Respondent’s late filing violated G.L. c. 268B, § 5.[3]/   Petitioner requests that the Commission impose a civil penalty of $800.[4]/

The OTSC in this case was issued on October 13, 2011.  Pursuant to 930 CMR 1.01(5)(c),[5]/  Respondent’s Answer was due by November 3, 2011.  Respondent failed to file an Answer by that date.

On November 22, 2011, the Presiding Officer issued an Order on Motion for Summary Decision[6]/ (Order on Motion) requiring Respondent to file an Answer by December 6, 2011, or to otherwise show cause why a summary decision should not be entered against him.  The Order on Motion further provided that, if Respondent failed to file an Answer by that date, the Presiding Officer would request that the Commission consider at its December 16, 2011, meeting whether a summary decision should be entered against Respondent.[7]/   

Pursuant to 930 CRM 1.01(6)(e)(2), the Commission may enter a summary decision in favor of the Petitioner when the record discloses the Respondent’s failure to file documents required by 930 CMR 1.00, to respond to notices or correspondence or to comply with orders of the Commission or Presiding Officer, or otherwise indicates a substantial failure to cooperate with the adjudicatory proceeding.  The record in this case amply warrants the entry of a summary decision in favor of Petitioner. 

Despite notice, the Respondent failed to file an Answer to the OTSC.  In addition, he failed to file an Answer or to otherwise respond orally or in writing to show cause why summary decision should not be entered against him pursuant to the Order on Motion. 

 

II.  Order

 

Respondent’s failure to defend or otherwise respond to the allegations constrains us to enter summary decision in favor of Petitioner, concluding that Respondent has violated G.L. c. 268B, § 5.  Accordingly, pursuant to the authority granted to it by

G.L. c. 268B, § 4(j), the State Ethics Commission hereby ORDERS Respondent David Landy, according to the penalty schedule, to pay a civil penalty of $800 for filing his SFI  more than seventy-one (71) days after the expiration of the grace period following the Formal Notice of Lateness.

 

DATE AUTHORIZED: December 16, 2011

DATE ISSUED: December 21, 2011

 

SIGNED:

 

  //signed//                                            
Charles B. Swartwood, III, Chairman       

 

  //signed//                                            
David L. Veator

 

  //signed//                                            
Patrick J. King

 

  //signed//                                            
Paula Finley Mangum

 

  //signed//                                            
Martin F. Murphy

 

NOTICE OF APPEAL

 

Respondent is notified of his right to appeal this Ruling and Order pursuant to G.L. c. 268B, § 4(k) by filing a petition in Superior Court within thirty (30) days of the issuance date.

 

 



[1]/ Pursuant to 930 CMR 1.01(6)(e)(2):

When the record discloses the failure of the Respondent to file documents required by 930 CMR 1.00, to respond to notices or correspondence, or to comply with orders of the Commission or Presiding Officer, or otherwise indicates a substantial failure to cooperate with the Adjudicatory Proceeding, the Presiding Officer may issue an order requiring that the Respondent show cause why a Summary Decision should not be entered against him or her.  If the Respondent fails to show such cause, a Summary Decision may be entered in favor of the Petitioner.  Any such Summary Decision shall be granted only by the Commission, shall be a Final Decision and shall be made in writing as provided in 930 CMR 1.01(10)(o).

 

[2]/  This time calculation includes a three (3) day period for receipt by mail of the Formal Notice in addition to the ten (10) day grace period.

 

[3]/   The last paragraph of § 5 provides that “[f]ailure of a reporting person to file [an SFI] within ten days after receiving notice as provided in clause (f) of section three of

[G.L. c. 268B], or the filing of an incomplete statement of financial interests after receipt of such a notice, is a violation of [G.L. c. 268B] and the commission may initiate appropriate proceedings pursuant to the provisions of section four.”  

 

[4] The Commission has adopted the following penalty schedule for late submission of an SFI after the expiration of the 10 day grace period following receipt of a Formal Notice: 1-10 days late ($100); 11-20 days late ($200); 21-30 days late ($300); 31-40 days late ($400); 41-50 days late ($500); 51-60 days late ($600); 61-70 days late ($700); 71-80 days late ($800); 81-90 days late ($900); 91-100 days late ($1,000); 101-110 days late ($1,100); 111-120 days late ($1,200); 121 days to the day before an Order to Show Cause is issued ($1,250); and date a Decision and Order is issued by the Commission (up to $10,000)  or more late ($1000); and non-filing of SFI ($10,000). 

 

[5]/ "Within 21 days of the issuance of an Order to Show Cause (OTSC), the Respondent shall file an Answer containing a full, direct and specific answer to each claim set forth in the Order admitting, denying, or explaining material facts.” 

 

[6]/  Pursuant to 930 CMR 1.01(6)(e)(2), if the Respondent fails to file an Answer, "the Presiding Officer may issue an order requiring that the Respondent show cause why a Summary Decision should not be entered against him or her.  If the Respondent fails to show such cause, a Summary Decision may be entered in favor of the Petitioner."    

 

[7]/ The Order on Motion was sent to Respondent by first class mail at the address shown on Respondent’s 2010 SFI received by the Commission on August 1, 2011.